Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness
| DOI | 10.1177/13657127211002287 |
| Author | Jennifer Porter |
| Published date | 01 April 2021 |
| Date | 01 April 2021 |
| Subject Matter | Articles |
Article
Admissibility of confession
evidence: Principles of
hearsay and the rule
of voluntariness
Jennifer Porter
Curtin Law School, AU-WA Western Australia, Australia
Abstract
The common law test of voluntariness has come to be associated with important policy
rationales including the privilege against self-incrimination. However, when the test originated
more than a century ago, it was a test concerned specifically with the truthfulness of confession
evidence; which evidence was at that time adduced in the form of indirect oral testimony, that
is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the
form of an audiovisual recording that can be observed directly by the trial judge, rather than as
indirect oral testimony, there may be capacity for a different emphasis regarding the question
of admissibility. This article considers the law currently operating in Western Australia,
Queensland and South Australia to see whether or not, in the form of an audiovisual recording,
the exercise of judicial discretion as to the question of the admissibility of confession evidence
might be supported if the common law test of voluntariness was not a strict test of exclusion.
Keywords
admissibility, confessions, evidence, hearsay, voluntariness
Introduction
At the time when the modern Australian common law relating to the admissibility of confession
evidence originated, evidence of a confessional asser tion was adduced in the form of indirect oral
testimony, that is; by the witness saying in court what he or she heard out-of-court or, in other words,
as hearsay. In contemporary criminal trials, however, evidence of a confessional assertion is now more
often adduced (and indeed is now generally required to be adduced) in the form of an audiovisual
recording, which recording is played in court. Given that the form in which confession evidence is
adduced has changed, this article will consider whether or not the exercise of judicial discretion as to the
Corresponding author:
Jennifer Porter, Curtin Law School, 57 Murray Street Perth, AU-WA Western Australia 6845, Australia.
E-mail: jennifer.porter@curtin.edu.au
The International Journalof
Evidence & Proof
2021, Vol. 25(2) 93–114
ªThe Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13657127211002287
journals.sagepub.com/home/epj
question of admissibility of confession evidence might be better supported if the common law test of
voluntariness was not a strict test of exclusion.
To place the analysis in context, the first section will distinguish the two systems of evidence law
governing the admissibility of confession evidence in Australia and focus the analysis on the relationship
between common law rules of evidence still operating in Western Australia, Queensland and South
Australia and the more recent requirement that the confessional evidence be audiovisually recorded.
The complexity of the process and issues concerning the admissibility of confession evidence gives
rise to many pathways of analysis and so careful attention is paid below in the section headed ‘Scope of
the analysis’ to define the scope of the article and frame terminology.
The section headed ‘Confession evidence as hearsay’will establish the historical and conceptual
foundation for the analysis, explaining that the common law rules concerning admissibility of confession
evidence, including the test of voluntariness, originate d when confession evidence was adduced as
indirect oral testimony and therefore derive their conceptual foundations not only in policy but more
fundamentally in rules and concerns about the inherent unreliability of hearsay.
Given that the form of confession evidence has changed, the next section will compare the evidentiary
properties of indirect oral testimony of an out-of-court assertion to the evidentiary properties of an
audiovisual recording of an out-of-court assertion. This article will suggest that an audiovisual recording
provides a direct rather than an indirect experience of the assertion, which means that it is, first,
inherently more reliable evi dence that an admission was actual ly made at all; and, second, that it
provides a significantly enhanced capacity to assess the truthfulness of the assertion. This means that
audiovisually recorded evidence is more reliable evidence of the assertion itself and is more reliable
evidence of the integrity of the assertion. The voluntariness test is concerned with the latter aspect.
The case example of Arthurs v State of Western Australia will provide a basic illustration of how a
trial judge, for the fact of being able to directly observe the audiovisual recording of an out-of-court
confessional assertion, which is reliable evidence, but also is in a p osition to make well-informed
findings about the truthfulness of the assertion. The case will also illustrate how a finding of involuntari-
ness automatically precludes furthe r considerations of fairness, probative v alue and broader public
interest because the common law test of volun tariness is a strict test of exclusion. Her e it will be
suggested that the mechanics of the voluntar iness inquiry are counter-intuitive given t he enhanced
capacity to discern reliability and truthfulness with audiovisually recorded confession evidence.
The section headed ‘Jurisprudential re-emergence of truthfulness emphasis’ will point to the reason-
ing in recent Australian and Canadian authorities to illustrate that there has been a jurisprudential re-
emergence of the notion that the test of voluntariness is concerned more fundamentally with the
truthfulness of a confessional assertion and that the voluntariness of the assertion is only one of multiple
factors that will be relevant to the question of probative value and weight.
The final section will briefly consider possible mechanisms for reform including whether judicial
discretion in this area could be supported by treating audiovisually recorded confession evidence as real
evidence instead of hearsay.
Law concerning admissibility of confessions
Two systems of rules regarding admissibility of confessions
It is now a statutory requirement across all Australian jurisdictions that evidence of a confession or
admission made to an investigating officer must be audiovisually recorded if it is to be allowed into
evidence at trial.
1
The requirement that confessional evidence be audiovisually recorded now applies in
1. Police Powers and Responsibilities Act 2000 (Qld) s. 436(2); Summary Offences Act 1953 (SA) s. 74D(1)(a) and (b); Criminal
Investigation Act 2006 (WA) s. 118(3); Crimes Act 1914 (Cth) s. 23 V; Criminal Procedure Act 1986 (NSW) s. 281; Crimes
Act 1958 (Vic) s. 464H(1); Criminal Law (Detention and Interrogation) Act 1995 (Tas); Police Administration Act 1978 (NT)
94 The International Journal of Evidence & Proof 25(2)
To continue reading
Request your trial